University Affirmative Action Programs Face New Challenges

When the Justice Department announced in early August that it intended to investigate the admissions practices of selective universities, the reaction was mixed. Many supporters of the Trump Administration celebrated the news as a signal that white applicants might no longer be rejected in favor of those from historically underrepresented groups. Meanwhile, those who have long defended affirmative action policies saw the move as yet another indication that the Administration was working to turn back the clock on civil rights, and that affirmative action policies in general were doomed.

The simple truth of the matter is that affirmative action programs have been highly controversial from the time they came into wide use in the 1970s. An overview of affirmative action from 1978 forward shows that neither the law nor the arguments for and against affirmative action has changed very much at all. What has changed over the last 40 years are the tactics used by activists, administrators and policymakers on both sides of the issue.

In 1978, the Supreme Court announced a confusing decision in Regents of the University of California v. Bakke, 438 U.S. 265, which upheld the principle of affirmative action in university admissions while striking down the quota-based system in use at the University of California-Davis medical school. Bakke was a white Vietnam war veteran with an outstanding service record and impressive MCAT scores who tried for several years without success to get into medical school. He was rejected everywhere, mainly on account of his age — Bakke was in his early 30s, which was considered in those days to be too old for medical school.

Bakke finally applied to UC-Davis, which at the time reserved 8 of its 100 admission slots for minority applicants. He was rejected there, too. He sued the school on the grounds that its quota system violated his right to equal protection under the law under the 14th Amendment. The California Supreme Court eventually agreed with him, and he was admitted to the Davis medical school.

The University of California Regents then sought further review in the U.S. Supreme Court, which held that the practice of reserving designated class space for any particular group was a violation of Bakke’s equal protection rights, but that more nuanced affirmative action programs that reasonably seek to redress historical patterns of discrimination were permissible. This opened the door toward widespread adoption and expansion of affirmative action policies that considered race, sex or other characteristics as just one factor among many in university admissions decisions, even throughout the Reagan and Bush administrations in 1981-93.

Affirmative Action Pushback and Workarounds

The first successes in the fight to dismantle affirmative action programs came not through legislation or the courts, but through the ballot box. Voter initiatives and ballot propositions to reject race or ethnicity as legitimate factors in university admissions began with California’s Proposition 209, which was approved by voters in 1996. Similar measures were soon passed afterward in Michigan and Washington state. Nebraska, Arizona and Oklahoma have followed suit since then. Texas eliminated race as an admissions consideration by court order, Florida abolished racial considerations in affirmative action by executive decree, and in 2011, the New Hampshire legislature passed a bill to the same effect.

Most of these states have other programs in place to achieve goals similar to those of affirmative action programs. For example, California, Texas and Florida have so-called percent plans, which offer automatic admission to a state college or university if a student graduates in the top 4 percent (California), 10 percent (Texas) or 20 percent (Florida) of the student’s graduating high school class.

Other conditions and restrictions concerning academic rigor, course distribution and similar factors apply under each of these programs. In California and Florida, the offer applies to state institutions in general, not necessarily the student’s first choice. In Texas, however, the student actually gets to choose the school.

At UT-Austin, 75 percent of each freshman class is reserved for students who qualify under the Texas 10-percent plan, which makes competition for the remaining places extremely tight. In fact, the 75-percent cap means that the 10-percent qualifying rule might only cover the top 7 to 9 percent of graduating students in a given year.

The percent plans widen the admission opportunities for motivated students from disadvantaged backgrounds and who attend minority-dominated high schools to gain admission to colleges and universities — instead of competing with a broader applicant pool largely composed of students with much better access to academic resources, they’re competing with their own classmates, who frequently have similar ethnic, family income, and academic support characteristics.

Another strategy, such as the one in use at the University of Washington, is to invite consideration of socioeconomic factors and hardship narratives not explicitly linked to race in order to achieve substantially the same goals as a race-based affirmative action program.

Some schools, such as the University of Georgia and Texas A&M University, have abandoned longstanding legacy preference practices, under which children or grandchildren of alumni are given special consideration in admissions decisions. This practice obviously tends to undermine the goals of affirmative action by reinforcing established elite networks.

Are Asian-American Applicants Helped or Harmed by Affirmative Action?

One relatively new element in the affirmative action debate concerns Asian- American students. In 2015, a coalition of 64 Asian advocacy groups asked the Justice Department to investigate whether the nation’s most selective universities were discriminating against Asian-American applicants. This is the complaint that the Department recently revived.

While Asian-Americans make up less than 6 percent of the population nationally, they represent 22 percent of Harvard’s incoming freshman class. How can that be discrimination? The advocacy groups argue that the most selective universities apply an arbitrary cap to Asian-American admissions, and thereby reject Asian candidates who would have been admitted if they were of any other ethnicity. One 2009 study found that Asian-American applicants need to score 140 points higher on the SAT than other groups in order to be considered on an equal footing.

Careful and limited consideration of race continues to be permissible in university admission decisions, at least where state ballot measures or legislation haven’t prohibited affirmative action. This principle was upheld last year by the Supreme Court in Fisher v. Texas. Decided by a 4-3 vote after the death of Antonin Scalia, the Fisher decision was argued and determined on grounds not much different from those raised in the Bakke case almost 40 years earlier.

All of which means that our nation continues to debate the fairness of potentially discriminating against one group in order to prevent discrimination against another group. While the equal protection arguments raised by opponents of affirmative action make a certain intuitive sense, Justice Blackmun’s answer in his Bakke opinion (438 U.S. at 407) continues to resonate:

I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot – we dare not – let the Equal Protection Clause perpetuate racial supremacy.